Amid political mayhem, the reassuring calm of the Supreme Court

David S. BroderThe Washington Post

Published Saturday, December 02, 2000

WASHINGTON -- It was like going from a train wreck to a trapeze act.

After three weeks of watching unchecked political mayhem, with shouting protesters, placard-waving demonstrators and rival ''spinners'' unwilling to concede any point to their opponents, Friday's Supreme Court hearing on the Florida presidential election dispute had the focused concentration, the self-assurance and the breathless timing of aerialists performing without a net.

There was still a circus atmosphere outside the Supreme Court, with milling protesters jostling for position before the TV cameras. But inside the marble chamber, there was dignity and decorum and the hush that falls over an audience when the Flying Wallendas are in midair.

To be sure, arguing constitutional principles is nothing like squinting through a magnifying glass at disputed ballots -- a difference that carries an important civics lesson for the nation. However grubby politics may look when examined as closely as the Florida voting and vote-counting procedures have been studied since Nov. 7, the principles that guide the nation have lost none of their grandeur. And even when the application of those principles to a matter as important as the election of the president is a head-scratching intellectual test, the availability and credibility of the Supreme Court is a source of reassurance to many.

William T. Coleman, Jr., a noted Washington attorney and former Cabinet member who once clerked for Justice Felix Frankfurter, was a spectator at Thursday's hearing. Afterward, he commented that ''the thing that always impresses me is the extent to which these nine people (the justices) are prepared. They know the issues and the record and the briefs. And it's amazing that you have an institution whose members are not elected, who are there for life, and yet when they rule on an issue, the American people tend to accept it.''

That authority has not been easily won. The Founding Fathers envisaged a government in which the legislative branch, Congress, would be the repository of most power, with lesser roles in mind for the president and the Supreme Court. In the Federalist papers, the articles written by Alexander Hamilton, James Madison and John Jay to persuade the states to ratify the Constitution, only six of the 85 essays concern the judicial branch -- and they come after almost every other topic has been exhausted.

But even then, 212 years ago, Hamilton, in explaining the role of the Supreme Court, offered ''this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the state legislatures, without some constitutional mode of enforcing the observance of them?''

From the time of Chief Justice John Marshall onward, the justices have been asserting and expanding their role -- often to the irritation of presidents and Congress.

Andrew Jackson famously denounced an adverse Supreme Court ruling: ''John Marshall has made his decision. Now let him enforce it.'' A century later, Franklin D. Roosevelt reacted to a series of cases in which the Supreme Court ruled major parts of the New Deal unconstitutional by attempting to ''pack the court'' with additional justices of his own choosing. A Democratic Congress rebuffed Roosevelt, and he paid a political price for overreaching. But few confrontations have been more dramatic than the 1974 Supreme Court decision denying President Richard Nixon's right to withhold his White House tapes from the special counsel investigating the Watergate break-in. It was that unanimous ruling that forced disclosure of the ''smoking gun'' tape, in which Nixon admitted his complicity in the coverup, and led directly to the only presidential resignation in American history.

An irony of this Florida case is that Chief Justice William Hubbs Rehnquist, who ran Friday's hearing with his usual stopwatch efficiency, was nominated for the bench by that same Richard Nixon. If a reminder were needed that few presidential legacies are more enduring than his Supreme Court choices, Rehnquist's role in helping determine the identity of the man who will be sixth in line after Nixon on history's roster of American presidents teaches it again.

Friday's hearing will not lead to the breaking of a president, but it may be pivotal to giving either George W. Bush or Al Gore keys to the White House. Each side desperately wants a ruling it can claim as a victory -- with the Texas governor hoping it reinforces his contention that the counting and recounting should end, while the vice president wants approval of more time for him to contest the apparent Bush victory in Florida.

Even if the Supreme Courts defers or delays any such clear-cut verdict, Thursday's hearing brought to the surface the fundamental constitutional questions underlying what has often seemed to be a bad sci-fi movie plot about such implausible objects as hanging chads and dimpled ballots.

The rapid-fire exchanges between the justices and the attorneys representing Gore and Bush -- a form of verbal acrobatics every bit as dazzling to laymen as a trapeze act -- focused on two of central strands of the constitutional structure of American government.

One is the principle of federalism -- the notion of shared sovereignty, with separate areas of primacy for state and national governments. The hardest question to Bush attorney Theodore Olson was: Why are you in federal court, when this is an issue of the proper application of Florida law to a dispute over Florida's electors?

The second is the principle of separation of powers. And Gore's advocate, Laurence Tribe, was hard-pressed to explain why it was not violated when the Florida supreme court changed the statutory deadline for certifying its vote results and created its own timetable and procedure for deciding who has won.

Supreme Court decisions do not always end the public debate. School prayer and abortion rulings are being heatedly disputed decades after they were made.

Trevor Potter, an election law expert and former chairman of the Federal Election Commission, commented Thursday that close outcomes almost always breed ''bitter disputes. When I woke up the day after the election and realized we were headed for a recount in Florida, my reaction was, 'This is disastrous.' ''

But Potter, who was in the Supreme Court Thursday, said, ''This was the first civil moment I have seen in this whole process. It was law at its best, and they did a very good job of discussing the issues.''

It could, however, be the calm before the storm. ''There are still lots of land mines for them to step on,'' Potter said. ''Whatever the court does will become partisan fodder.''